One area that has been the subject of legislation, rule changes, and much litigation, during the pandemic, has been possession claims. In this week’s bulletin, Robert Brown discusses a new rule and practice direction relating to possession claims. As he explains, the new provisions introduce a new “beast”, called a “reactivation notice”. For anyone involved with possession claims, this bulletin is essential reading.
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Mark Warwick QC
Restarting possession claims
The tricky problem of what to do with possession claims during the COVID-19 pandemic led first to a new practice direction (PD 51Z) and then a new rule (r.55.29). The effect of those was to place a stay on possession claims (and appeals in possession claims) until 23 August 2020. Now there is to be both a new rule (55.A1) and a new practice direction (55C) as possession claims restart once the general stay ends.
CPR 55.A1
The new rule, r.55.A1 is inserted by The Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 (SI 2020/751).
The new rule is a simple one.
“(1) Practice Direction 55C makes provision for how claims under this Part (including appeals) are to proceed following the expiry of the stay provided for by rule 55.29.
“(2) This Part has effect subject to Practice Direction 55C for the period specified, and in the manner specified, in Practice Direction 55C.”
Rather oddly, the list of contents is amended by this SI to include reference to “Coronavirus – temporary provision Rule 34.7A”. This appears to have been lifted from The Civil Procedure (Amendment No. 3) Rules 2020 (SI 2020/747), which inserts a new r.34.7A into Part 34.
What is more, the new rule inserted by SI 2020/751 appears from the web version on legislation.gov.uk to be numbered simply “55.” rather than “55.A1”. The PDF version does, however, show that it will be “55.A1”.
It is clear from the new rule that the substance is in the new practice direction.
CPR PD 55C
The new PD 55C can be found in the 123rd Update to the CPR. It will apply from 23 August 2020 until 28 March 2021, which is called the “interim period” (para.1.1). The PD splits claims into three types, depending on when they were brought. A “stayed claim” is a claim that is brought on or before 22 August. A “new claim” is a claim brought after 22 August. In some respects stayed claims are treated differently depending on whether or not they were brought on or after 3 August (no specific label is identified for these categories of cases).
Reactivation notices
The requirement for a reactivation notice is introduced by para.2, which only applies to stayed claims. Paragraph 2.1 provides that, unless the court directs otherwise, no stayed claim is to be listed, re-listed, heard, or referred to a judge under CPR 55.15 (which applies to claims brought under the accelerated possession procedure), unless one of the parties files and serves a “reactivation notice” confirming that they wish to have the case listed, re-listed, heard, or referred (as the case may be).
This is subject to two important exceptions set out in para.2.2, which disapplies para.2.1 in relation to any stayed claim brought on or after 3 August 2020, and any stayed claim in which a final order for possession has been made (the phrase “final order for possession” is not defined; it is used in CPR 55.27 but as that is within Section III of Part 55, which has not been subject to the general stay, that may not be what was meant; it might be intended to mean an order where the time for appealing has passed, mirroring some landlord and tenant statutory provisions, such as Housing Act 1996, s.81).
Unless those exceptions apply, a reactivation notice is required to confirm that the party filing it wishes to have the case listed, re-listed, heard, or referred, and set out what knowledge the party has as to the effect of the pandemic on the defendant and their dependants (except in an appeal) (para.2.3). If the reactivation notice is filed by the claimant and the claim is based on arrears of rent, the claimant must also provided an updated rent account covering a two-year period (again, except in an appeal) (para.2.4).
Paragraph 2.5 provides that, where a trial date was set prior to 27 March 2020 then, unless the court orders otherwise, that trial date shall be vacated unless a party complies with paras 2.1, 2.3, 2.4, and 5.1 (discussed below), not less than 42 days before the hearing date. The claim will also be stayed.
Paragraph 2.6 provides that a claim shall also be stayed if no reactivation notice is filed and served by 4pm on 29 January 2021.
It would still be open to any party to apply to lift a stay imposed by either para.2.5 or para.2.6. Such an application is not to be treated as an application for relief from sanctions (para.2.7).
21 days’ notice of hearing
Paragraph 3.1 is said by para.1.4 to apply to all stayed claims. It requires the court, unless the court directs otherwise, to give at least 21 days’ notice of any hearing listed in response to a reactivation notice. As a reactivation notice is not required for some stayed claims, as set out above, it is not clear how this paragraph will apply to those types of stayed claims.
Listing of first hearing
Paragraph 4.1 will apply to all claims (see para.1.5) but is only relevant if there is no first hearing listed. CPR 55.5(1) is modified so that the court can fix a date for the hearing when it issues the claim form (as the rule currently provides) or after it has issued the claim form. In circumstances it is perhaps not surprising that CPR 55.5(3)(b) (“the standard period between the issue of the claim form and the hearing will be not more than 8 weeks”) will not apply.
Case management directions
Paragraph 5.1 applies to stayed claims which come under para.2.1 and in which case management directions have been given prior to 23 August 2020. In those cases, any party filing and serving a reactivation notice must also file and serve a copy of the last directions order together with new dates for compliance with directions, taking account of the stay. This should be accompanied by either a draft order setting out any alternative or additional directions required, or a statement that no new directions are needed and that the existing hearing date can be met. There should also be a statement setting out whether the case can be heard by video or audio link.
If any other party does not agree with any of that, they must file and serve a response within 14 days of service of the reactivation notice.
Paragraph 5.3 provides that the claim shall be stayed if no party has complied with para.5.1 by 4pm on 29 January 2021 (but bear in mind that the date for compliance may be earlier if a trial date has been set, see para.2.5, discussed above). As with a stay under paras 2.5 or 2.6, an application to lift that stay is not an application for relief from sanctions.
Information required in other cases
Finally, paras 6.1 and 6.2 impose new requirements on claimants to provide information to the courts. Paragraph 6.1 applies to new claims and stayed claims brought on or after 3 August 2020. The claimant is required to bring to the hearing two copies of a notice confirming compliance with the Pre-Action Protocol for Possession Claims by Social Landlords (if that protocol applies) and setting out what knowledge the claimant has as to the effect of the pandemic on the defendant and their dependants. The claimant must also serve the notice on the defendant not less than 14 days before the hearing.
Paragraph 6.2 applies to new claims and stayed claims brought on or after 3 August 2020 under the accelerated possession procedure in Section II of Part 55 (curiously, para.1.7 says that para.6.2 only applies to new claims and does not mention stayed claims brought on or after 3 August). In those claims, the claimant must file with the claim form a notice setting out what knowledge the claimant has as to the effect of the pandemic on the defendant and their dependants. As the interim period does not begin until 23 August, it is not clear how the practice direction works to require claimants to comply with this requirement in claims brought on or after 3 August but before 23 August.
Consequences of non-compliance
As we have seen, automatic stays are imposed in several situations. Any application to lift such a stay is not to be treated as an application for relief from sanctions and so all of the, by now well-known, cases on CPR 3.9 would not need to be considered. It is not clear though what test is to be applied instead.
On 22 July 2020, the Housing Minister, Christopher Pincher MP told Parliament that
“I can confirm that landlords do have, or will have, a duty to assess the effect of covid-19 on their constituents, including the financial impact and their vulnerability, should they wish to bring an application before the court to seek possession of their property. If they do not do that, or if the information they provide is not appropriate, the courts will be well within their rights to adjourn the case, which will cost the landlord time and money, and certainly focus the landlord’s mind. I am content with the thought that courts have always done what they can, and that they will continue to do so, to mediate in the execution of justice. They will also do what they can to help both parties in the case, including tenants. Landlords will have a duty as a result of the Lord Chancellor’s statutory instrument, which he laid last Friday.”
That does not all seem to follow from the practice direction. First, while there is a requirement in most cases for the claimant to provide some form of notice setting out what knowledge they have about the effect of the pandemic on the defendant, there is no duty in the practice direction to actively enquire about that. Secondly, while courts will, no doubt, be able to use case management powers and adjourn in some cases, it must be questionable whether the courts can do so where the claim is brought under Housing Act 1988, s.21, or where there is a mandatory ground for possession (such as Ground 8 in Sch.2 to the 1988 Act; and see North British Housing Association Ltd v Matthews [2004] EWCA Civ 1736; [2005] 1 WLR 3133).